Maine’s Superior Court recently affirmed a decision from the Maine
Labor Relations Board (MLRB) finding that two municipal supervisory employees were
“public employees” with the right to collectively bargain under Maine’s
Municipal Public Employees Labor Relations law (MPELR). The decision is
noteworthy because it sheds light on two exceptions to the definition of
“public employee” under the MPELR and, perhaps more important for
municipalities, what is required for an employee to fall within those
exceptions.
The issue in Town of Searsport v. State of Maine and LIUNA
Laborers’ Local 327 arose from a union’s petition with the MLRB seeking to create a bargaining unit for employees in the town’s
Waste Water Treatment Plant (WWTP) and Public Works Department. After the
town objected to including the WWTP Superintendent and the Public Works
Director in the unit, an examiner for the MLRB held an evidentiary hearing and
concluded that both the Superintendent and the Public Works Director should be
included in the unit and should not be excluded from coverage by the
MPELR. This decision was affirmed by the full MLRB.
Affirming the MLRB’s decision on appeal, the Superior Court found
that the Superintendent and Public Works Director did not fall within two
exceptions to the MPELR’s definition of “public employee.” Turning to the
Superintendent first, the court found this position did not fall within an
exception that applies to employees who are appointed to “office” pursuant to
statute, ordinance or resolution for a specified term by the executive head or
body of a public employer. Although the Superintendent had been appointed
to his position for a number of one-year terms by the Town Manager, the court
found the meaning of “office” was ambiguous because it could refer either to a
specific official position or to employment in general. The court
therefore deferred to the MLRB’s interpretation of the term, which limited the
exception to public employees appointed to official positions. In this
case, the town had a policy that identified 24 officials over which the town
had appointive authority, but neither the Superintendent nor the Public Works
Director were on the list. Given the absence of evidence demonstrating
that the Superintendent held an official position specifically established by
statute, ordinance or resolution, the court found the position did not fall
within the exception.
As for the Public Works Director, the court found this position
did not fall within a second exception that applies to a “department head or
division head” appointed to office pursuant to statute, ordinance or resolution
for an unspecified term by the executive head or body of a public
employer. Here, the court found no ambiguity in the exception, but found
there was no evidence showing that the director was “properly appointed” to a
department head position. The director had originally been appointed to
the position of Highway Foreman, but his job title and job description were
changed to Public Works Director several years later. Although the Board
of Selectmen approved the change in job description, it did not take any
further action to reappoint or clarify the director’s appointment from Highway
Foreman to Public Works Director. As a result, regardless of whether the
Public Works Director was a department head position, the court found that the
director was never properly appointed to that position by the town.
For municipalities, the
Superior Court’s ruling is important because it highlights the importance of
procedure when appointing individuals to positions within a town. The
ruling makes clear that, for an individual to fall within one of these two
exceptions to the definition of “public employee,” the individual must not only
be appointed to a position covered by the exceptions, the individual must also
be appointed following a proper appointive process.
